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					CREELEY LUKIANOFF FINAL.docx                                             5/13/2011 11:38 AM




       NEW MEDIA, OLD PRINCIPLES: DIGITAL
        COMMUNICATION AND FREE SPEECH
                  ON CAMPUS
                                     Will Creeley
                                    Greg Lukianoff**

I.      INTRODUCTION ............................................................... 331
II.     E-MAIL: A FLASHPOINT FOR CONFLICT AND
        CENSORSHIP .................................................................... 335
III.    ONLINE EXPRESSION: MORE VISIBILITY FOR
        STUDENT SPEECH PROMPTS MORE
        CENSORSHIP
        CENSORSHIP .................................................................... 346
IV.     CONCLUSION.................................................................... 355

                               I.    INTRODUCTION

    With every passing year, the longstanding battle over
freedom of expression for students at our nation’’s colleges and
universities moves farther and farther away from the physical
confines of the campus itself. Where once the fiercest conflicts
over students’’ rights to freedom of speech revolved around access
to passersby on grassy quads, today’’s collegiate free speech
controversies often take place in a digital realm that would have
been almost entirely alien to students of just twenty years ago.
The immediacy of e-mail and the massive interconnectivity made
possible by social networking sites like Facebook have fused with
ubiquitous high-speed broadband access to present college
students with unprecedented opportunities to speak their


   Director of Legal and Public Advocacy, Foundation for Individual Rights in Education.
J.D., New York University School of Law, 2006; B.A., New York University, Gallatin
School of Individualized Study, 2003.
**
   President, Foundation for Individual Rights in Education. J.D., Stanford Law School,
2000; B.A., American University, 1996.



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minds——simpler, faster, and to larger audiences than ever before.
But while the technology has changed, the underlying dynamics
of the conflicts have not. Just like their predecessors from twenty
years ago, today’’s students continue to be punished for speech
that is either protected by the First Amendment (at public
colleges) or would be protected in society at large (at private
colleges).
    In spite of being memorably described by Justice William
Brennan as ““peculiarly the ‘‘marketplace of ideas,’’””1 college
campuses remain surprisingly and stubbornly hostile to freedom
of expression and First Amendment rights. Since its founding in
1999, the Foundation for Individual Rights in Education (FIRE),
a non-partisan, non-profit organization dedicated to defending
the civil liberties of college students and faculty, has documented
a shocking number of instances of student speech that, while
protected, nevertheless elicited punishment after having
offended, irritated, disturbed, or simply inconvenienced a fellow
student or administrator.2 Unfortunately, many of these
punishments are not the result of administrators acting outside
of the dictates of campus policy, but rather adhering to it.3 Each
year, FIRE catalogues speech-related policies maintained by
colleges and universities across the country.4 During the 2009––
2010 academic year, FIRE reviewed policies at 390 of the nation’’s
largest and most prestigious public and private institutions to
provide an accurate assessment of the state of free speech on
campus.5 FIRE’’s research revealed that more than two-thirds of
these institutions maintained policies explicitly prohibiting
protected speech.6

      1. Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967); see also Healy v.
James, 408 U.S. 169, 180 (1972) (internal citation omitted).
      2. Both authors work for FIRE. For a full accounting of FIRE’’s cases, visit
http://thefire.org/cases/all/.
      3. FIRE, SPOTLIGHT ON SPEECH CODES 2011: THE STATE OF FREE SPEECH
ON OUR NATION'S CAMPUSES 10 (2010) [hereinafter SPOTLIGHT ON SPEECH CODES
2011], available at http://thefire.org/public/pdfs/312bde37d07b913b47b63e
275a5713f4.pdf?direct.
      4. Spotlight on Speech Codes Reports, FIRE, http://thefire.org/code/
speechcodereport/ (last visited Mar. 27, 2011).
      5. SPOTLIGHT ON SPEECH CODES 2011, supra note 3.
      6. Id. at 6. Detailed information about FIRE’’s data and methodology may

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    Making matters still worse, these policies continue to be
widely maintained and enforced despite a consistent string of
legal precedent dating back more than two decades, making clear
that speech codes——university regulations prohibiting expression
that would be constitutionally protected in society at large——are
unconstitutional at public universities.7 While private
universities are not directly bound by the First Amendment, the
majority present themselves as bastions of free expression and
make explicit promises to students to that effect in promotional
materials and handbooks.8 Accordingly, these private


be found in this most recent report. Id. at 4 9. Most instances of the
punishment or threatened punishment of protected speech involve allegations of
““harassment.”” Id. at 12. Similarly, FIRE’’s research demonstrates that many
colleges continue to maintain overbroad or vague harassment policies. Id. at
18. Despite this confusion, in Davis v. Monroe County Board of Education, the
Supreme Court defined peer-on-peer harassment in the educational context as
conduct that is ““so severe, pervasive, and objectively offensive that it effectively
bars the victim’’s access to an educational opportunity . . . .”” 526 U.S. 629, 633
(1999). The Department of Education’’s Office for Civil Rights, the federal
agency charged with enforcing the prohibitions on discriminatory harassment
in Titles VI and XI, affirmed the primacy of the Davis standard in discussing
hostile environment harassment in a 2003 ““Dear Colleague”” letter sent to
college administrators. See Letter from Gerald A. Reynolds, Assistant Sec’’y,
Office for Civil Rights (July 28, 2003), http://www.ed.gov/about/offices/
list/ocr/firstamend.html.
           For a detailed discussion of the misuse of harassment rationales to
punish       protected   speech    on     campus,     see    Azhar     Majeed, The
Misapplication of Peer Harassment Law on College and University
Campuses and the Loss of Student Speech Rights, 35 J.C. & U.L. 385 (2009).
       7. See, e.g., McCauley v. Univ. of the V.I., 618 F.3d 232 (3d Cir. 2010)
(striking down hazing/harassment policy and prohibition on emotional distress);
DeJohn v. Temple Univ., 537 F.3d 301 (3d Cir. 2008) (sexual harassment
policy); Dambrot v. Cent. Mich. Univ., 55 F.3d 1177 (6th Cir. 1995)
(discriminatory harassment policy); Coll. Republicans at S.F. State Univ. v.
Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007) (civility policy); Roberts v.
Haragan, 346 F. Supp. 2d 853, 872 (N.D. Tex. 2004) (prohibition on ““insults,
epithets, ridicule or, personal attacks,””); Bair v. Shippensburg Univ., 280 F.
Supp. 2d 357, 362 (M.D. Pa. 2003) (prohibition on ““acts of intolerance””); Booher
v. N. Ky. Univ. Bd. of Regents, No. 2:96-CV-135, 1998 U.S. Dist. LEXIS 11404
(E.D. Ky. July 22, 1998) (sexual harassment policy); UWM Post, Inc. v. Bd. of
Regents, 774 F. Supp. 1163 (E.D. Wis. 1991) (discriminatory harassment
policy); Doe v. Univ. of Mich., 721 F. Supp. 852 (E.D. Mich. 1989)
(discriminatory harassment policy).
       8. Kelly Sarabyn, Free Speech at Private Universities, 39 J.L. & EDUC.
145, 145 (2010).

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universities are both contractually and morally bound to deliver
on these promises.9
    Given this documented hostility to protected speech on
campuses across the country, it is unsurprising that the
widespread adoption and integration of e-mail and social media
into students’’ lives has resulted in a growing number of cases of
students being punished for engaging in protected speech
online.10 Every year, FIRE notes an increase in the volume of
cases submitted to us that involve protected speech sent via e-

      9. Courts have commonly held that a contractual relationship exists
between a university and its students. See, e.g., Corso v. Creighton Univ., 731
F.2d 529, 531 (8th Cir. 1984) (““The relationship between a university and a
student is contractual in nature.””); Hendricks v. Clemson Univ., 578 S.E.2d 711,
717 (S.C. 2003) (university agreed that ““some aspects of the student/university
relationship are indeed contractual””); Organiscak v. Cleveland State Univ., 116
Ohio Misc. 2d 14, 17 (Ohio Ct. Cl. 2001) (““It is axiomatic that ‘‘when a student
enrolls in a college or university, pays his or her tuition and fees, and attends
such school, the resulting relationship may reasonably be construed as being
contractual in nature.’’”” (quoting Bleicher v. Univ. of Cincinnat Coll. of Med.,
604 N.E.2d 783, 787 (Ohio 1992))).
         Many jurisdictions look to the terms of student handbooks and policy
manuals to determine the terms of this contract, and will interpret those terms
according to state contract law. See Havlik v. Johnson & Wales Univ., 509 F.3d
25, 34 (1st Cir. 2007) (““The relevant terms of the contractual relationship
between a student and a university typically include language found in the
university's student handbook.””); cf. McConnell v. Howard Univ., 818 F.2d 58,
62 63 (D.C. Cir. 1987) (““It is well established that, under District of
Columbia law, an employee handbook such as the Howard University
Faculty Handbook defines the rights and obligations of the employee and the
employer, and is a contract enforceable by the courts.””). In McConnell v. Le
Moyne College, for instance, a New York appellate court held that Le
Moyne College must act in accordance with its student catalogue
because ““‘‘[w]hen a university has adopted a rule or guideline establishing the
procedure to be followed in relation to suspension or expulsion[,] that procedure
must be substantially observed[.]’’”” 808 N.Y.S.2d 860, 861 (N.Y. App. Div. 2006)
(alteration in original) (quoting Tedeschi v. Wagner Coll., 404 N.E.2d 1302,
1306 (N.Y. 1980)). Some courts, however, have held that guidebooks and other
student materials are non-binding or need not be precisely followed. See Love v.
Duke Univ., 776 F. Supp. 1070, 1075 (M.D.N.C. 1991), aff’’d, 959 F.2d 231 (4th
Cir.    1992)     (Duke     University’’s  academic    bulletin    was    not   a
binding contract); Pacella v. Tufts Univ. Sch. of Dental Med., 66 F. Supp. 2d
234, 241 (D. Mass. 1999) (ruling that the provisions of the handbook are not
contractually binding on the university in part because the university could
unilaterally modify them without notice).
     10. Case Archive, FIRE, http://thefire.org/cases/all (last visited Mar. 26,
2011).

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mail, Facebook, blogs, and other new electronic media.11 In this
essay, we will review several of the more egregious violations of
free expression rights involving online speech that FIRE has
documented in recent years and offer reflections on what these
cases tell us about the evolution of free speech principles in the
age of social media.12

           II. E-MAIL: A FLASHPOINT FOR CONFLICT
                       AND CENSORSHIP

    In the past fifteen years, e-mail has become an ubiquitous
element of college life and the predominant mode of
communication between students, faculty, and administrators.
The widespread reliance upon e-mail to facilitate all types of
conversation on campus——be it academic, social, political, or
otherwise——has accordingly shifted controversies sparked by
speech from the campus green to e-mail inboxes. As a result of
this relocation, FIRE has intervened in many cases involving
punishment (or the threat of punishment) for protected speech
sent via e-mail.13
    Many e-mail controversies recreate familiar types of free-
speech disputes, wherein controversial or contentious speech
upsets its audience and is singled out for punishment, despite the
fact that it is protected by the First Amendment or promises of
free expression. For example, at the University of Georgia
(UGA), a student, Jacob Lovell, was charged with two violations
of UGA’’s University Conduct Regulations following the receipt of
an e-mail Lovell sent to the university’’s Parking Services
department complaining about the lack of parking for scooters on
campus.14 Lovell’’s flippant e-mail——which, among other barbs,
asked Parking Services, ““Did you guys just throw darts at a map

    11. See SPOTLIGHT ON SPEECH CODES 2011, supra note 3, at 19 20.
    12. This essay reviews FIRE cases involving online speech and, as should
quickly become apparent, does not purport to serve as a comprehensive survey
of the state of First Amendment jurisprudence regarding online speech rights
for students and faculty.
     13. See Case Archive, supra note 10.
     14. William E. Lee, Protecting Speech on College Campus, ATLANTA J.
CONST., Mar. 15, 2011, www.ajc.com/opinion/protecting-speech-on-college-
873675.html.

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to decide where to put scooter corrals?””——prompted a letter from
Associate Dean of Students Kimberly Ellis stating that Lovell
allegedly ““engaged in disorderly conduct and disrupted parking
services when he sent an email to them that was threatening.””15
Similarly, at Clemson University, a student, William Kirwan,
was charged with ““Disorderly Conduct,”” ““Harassment,”” ““Failure
to Comply with Official Request,”” and ““Computer Misuse”” after
he sent Clemson administrator Laura McMaster a sharply-
worded e-mail rebuffing McMaster’’s request that Kirwan’’s
student group participate in Clemson’’s Fall Organizations Fair.16
In his e-mail, Kirwan told McMaster that ““I’’m not going to let
you bully the organization into doing the things you want us to
do or perceive as important,”” and joked that she must have been
““smoking crack”” prior to her attempt to persuade him to
participate.17
    An e-mail need not contain acid-tongued sarcasm to subject
its author to threats of punishment, however. Indeed, some


      15. E-mail from Jacob Lovell, Student, Univ. of Ga., to Univ. of Ga.
Parking Servs., (Aug. 17, 2010), thefire.org/article/12270.html; Letter from
Kimberly Ellis, Assoc. Dean of Students, Univ. of Ga., to Jacob Lovell, Student,
Univ. of Ga. (Sept. 3, 2010), thefire.org/public/pdfs/379e186dc1f1ba2e209
f363721db23e1.pdf?direct. Following a letter from FIRE pointing out that
punishing Lovell for his protected speech would violate his First Amendment
rights, the charges were dropped. Press Release, FIRE, Victory in Georgia:
Student Cleared of Charges for Complaint about Campus Parking (Sept. 22,
2010), http://thefire.org/article/12275.html. See also Valerie Strauss, Student
Gets in Trouble for E-mail on Scooter Parking, WASH. POST, Sept. 26, 2010,
http://voices.washingtonpost.com/answer-sheet/hu/student-gets-in-trouble-for-
em.html.
      16. Letter from Justin Carter, Assoc. Director, Office of Cmty. and Ethical
Standards, Div. of Student Affairs, Clemson Univ., to William Kirwan,
Student, Clemson Univ. (May 19, 2010), thefire.org/public/pdfs/9ee7328f
b39730591680a89f978c3430.pdf?direct.
      17. E-mail from William Kirwan, Student, Clemson Univ., to Laura
McMaster, Assoc. Dir. of Campus Programming, Clemson Univ. (May 13, 2010
4:22     PM),    thefire.org/public/pdfs/37bfa702cc504728722e0876b715c5d4.pdf?
direct. Again, following a letter from FIRE, the charges were dropped. Press
Release, FIRE, Victory: Clemson Drops All Charges Against Student Accused of
‘‘Disorderly Conduct’’ for E-Mail, (May 26, 2010), http://thefire.org/
article/11924.html. Clemson’’s response acknowledged that ““the First
Amendment protects speech even when it is rude or offensive”” and assured
FIRE that ““Clemson University does not prohibit speech in violation of the First
Amendment.”” Id.

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restrictions on e-mail on campus have attempted to silence core
political speech.18 For example, in recent years, college
administrators have sought to forbid students from using campus
e-mail to engage in political expression, mistakenly thinking that
by allowing such dialogue on university e-mail servers may leave
the institution more vulnerable to a loss of its tax exemption
under United States Internal Revenue Code.19 In September of
2008, Nicholas S. Hathaway, the University of Oklahoma’’s
Executive Vice President and Vice President of Administration
and Finance, sent an e-mail to all University of Oklahoma
students, faculty, and staff, informing them that university e-
mail accounts ““may not be used to endorse or oppose a candidate,
including the forwarding of political humor/commentary.””20
While conceding that students, faculty, and staff were permitted
to enjoy ““limited personal use”” of their university e-mail
accounts, Hathaway warned that even this use ““may not include
political issues outside of the educational context as it places the
university at risk of losing its tax exempt status.””21 Following a
letter from FIRE, University of Oklahoma President David L.

     18. FIRE POLICY STATEMENT ON POLITICAL ACTIVITY ON CAMPUS 1, 2, Oct.
28, 2008, available at http://thefire.org/index.php/article/9799.html.
     19. 26 U.S.C. § 501(c)(3) (2006). Section 501(c)(3) restricts qualifying non-
profit organizations from engaging in certain political activity. Id. However,
whether or not a 501(c)(3) organization has engaged in prohibited political
activity is an ad hoc determination contingent upon examination of the totality
of the circumstances in each case. Rev. Rul. 07-41, 2007-25 I.R.B. 1421. ““[I]n
the campus context, the IRS has interpreted the restriction on political activity
differently in light of the educational mission of colleges and universities,
allowing certain activities . . . that would otherwise likely constitute prohibited
activity.”” FIRE POLICY STATEMENT ON POLITICAL ACTIVITY ON CAMPUS, supra
note 18, at 9. Further, the IRS has made clear that the restriction on political
activity applies to those actions taken by the university or college as a whole,
and not the actions of individual faculty or students. Id. ““As long as partisan
political activity on campus by students and student groups is neither
privileged nor hindered by the institution, and as long as partisan political
speech by students and faculty does not overcome the strong presumption that
they do not speak for the institution, then the tax-exempt status of universities
and colleges should not be affected.”” Id.
     20. E-mail from Nicholas S. Hathaway, Exec. Vice President and Vice
President Admin. and Fin., Univ. of Okla., to Univ. of Okla. Faculty, Staff and
Students (Sept. 12, 2008), http://thefire.org/public/pdfs/ 43841407618806767066
ea1e97655cf8.pdf?direct.
     21. Id.

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Boren clarified that university policy ““does not limit the right of
anyone to express individual views”” and that ““[i]ndividual free
speech by all members of the university community is fully
protected.””22 Boren further made clear that Hathaway’’s
announcement was ““rescinded and withdrawn.””23
     Similarly, in July of 2010, Grambling State University’’s
(GSU) Office of Media Relations sent an e-mail containing the
following instruction to all GSU students: ““DO NOT FORWARD
campaign solicitations using university email as this implies
your support for the candidate and may be viewed as utilizing
university resources for solicitation purposes, a violation of
university and state policy.””24 Following a letter from FIRE and
similar criticism from the American Civil Liberties Union of
Louisiana, GSU President Frank G. Pogue stated that policy
revisions were forthcoming.25
     But while GSU Director of Public Relations Vanessa
Littleton assured FIRE26 that e-mail at GSU was governed by the
““Grambling State University Email Use Policy,”” that policy also
presents significant constitutional infirmities.27 For example, the
policy forbids ““the creation or distribution of any disruptive or
offensive messages, including offensive comments about race,
gender, hair color, disabilities, age, sexual orientation,
pornography, religious beliefs and practice, political beliefs, or



     22. E-mail from David L. Boren, President, Univ. of Okla., to Univ. of
Okla. Cmty., (Oct. 27, 2008 6:54 PM), http://thefire.org/index.php/article/
9850.html.
     23. Id.; see also William Creeley, Victory for Free Speech at University of
Oklahoma: Ban on Political E-mails Rescinded, FIRE (Oct. 28, 2008),
http://thefire.org/article/9857.html.
     24. E-mail from Grambling State Univ. to Students (July 13, 2010
2:00PM), http://thefire.org/public/pdfs/5b78feda553f8d50caeaa206897dff64.pdf
direct.
     25. Letter from Frank G. Pogue, President, Grambling State Univ., to Will
Creeley, Dir. of Legal and Pub. Advocacy, FIRE (Oct. 8, 2010),
http://thefire.org/public/pdfs/8dd85a9e69f1a986c3b12edbfdd3c44c.pdf?direct.
     26. Press Release, Grambling State Univ., Grambling State Univ. Email
Use Policy (Sept. 22, 2010), http://thefire.org/article/12283.html.
     27. See Press Release, FIRE and ACLU of La., Joint Statement Regarding
Grambling State University’’s Response (Sept. 22, 2010), http://thefire.org/
article/12281.html.

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national origin.””28 But the fact that a student may be sanctioned
under the policy for sending an e-mail including ““offensive
messages”” means that engaging in wide swaths of
constitutionally protected expression may serve as grounds for
punishment, as most speech that a recipient may find offensive is
nonetheless constitutionally protected.29 As the Supreme Court
has noted, ““the mere dissemination of ideas——no matter how
offensive to good taste——on a state university campus may not be
shut off in the name alone of ‘‘conventions of decency.’’””30 The
policy also prohibits ““[s]ending chain letters or joke emails from a
Grambling State University email account . . . .””31 But again,
jokes, including satire and parody, are unquestionably protected
under the First Amendment. In Hustler Magazine v. Falwell,32
the Supreme Court ruled that the First Amendment protects
even the most outlandishly offensive parody——in that case, a
cartoon suggested that the Reverend Jerry Falwell lost his
virginity in a drunken encounter with his mother in an
outhouse.33 Under these precedents and others, it is clear that
GSU’’s current e-mail policy is just as unconstitutionally
overbroad as their previous one.34
    Unfortunately, far too many schools maintain equally
overbroad policies governing e-mail speech. Examples are legion.
North Dakota State University prohibits ““[e]ntering obscene or
offensive material into computers or sending obscene or offensive
material through the Internet or any other electronic system [is]
prohibited.””35 While expression that meets the legal standard for


    28.  Id. (internal quotation marks omitted).
    29.  Id.
    30.  Papish v. Bd. of Curators of the Univ. of Mo., 410 U.S. 667, 670 (1973).
    31.  Press Release, Grambling State Univ., supra note 26.
    32.  Hustler Magazine v. Falwell, 485 U.S. 46 (1988).
    33.  Id. at 48, 57.
    34.  A statute or law regulating speech is unconstitutionally overbroad ““if it
sweeps within its ambit a substantial amount of protected speech along with
that which it may legitimately regulate.”” Doe v. Univ. of Mich., 721 F. Supp.
852, 864 (E.D. Mich. 1989) (citing Broadrick v. Oklahoma, 413 U.S. 601, 612
(1973)).
    35. N.D. STATE UNIV., RIGHTS AND RESPONSIBILITIES OF COMMUNITY: A
CODE OF STUDENT BEHAVIOR 12 (2008), available at http://thefire.org/
public/pdfs/2ddf3de3f47ed3726fb22f99f8ccbb9b.pdf?direct.

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obscenity announced by the Supreme Court in Miller v.
California36 does not enjoy First Amendment protection, merely
““offensive”” expression surely does.37 Oregon State University
bans ““sexually suggestive mail; explicit sexual graphic materials;
and racist, sexist or homophobic statements and verbal obscenity
in mail and postings.””38 While presumably well-intentioned, this
prohibition similarly oversteps the bounds of the First
Amendment by introducing an inherently subjective, hopelessly
vague ban.39 Similarly, Texas Tech University forbids ““the use of
abusive or otherwise objectionable language in either public or
private messages.””40 Northeastern Illinois University prohibits
““[p]osting or sending . . . offensive material which is not related
in any matter to academically approved research & learning,
providing instruction or within the person’’s official business
capacity.””41 The University of Connecticut outlaws using e-mail
to send ““abusive”” messages or otherwise using e-mail ““in a
manner that is not conducive to the academic mission.””42
      Each of these policies, and the many more like them, restrict
the expressive rights of students in ways that resuscitate the
speech codes rejected by federal and state courts for the past two
decades.43 By maintaining e-mail policies that inhibit and
proscribe speech protected by the First Amendment, universities
effectively ignore this jurisprudence, inviting future litigation.
More worrisome is the fact that, as a result of these restrictions,
universities teach students that certain speech is subject to


      36. Miller v. California, 413 U.S. 15 (1973).
      37. See id. at 24.
      38. Speech      Code     Rating:    Oregon     State    University,  FIRE,
http://thefire.org/spotlight/codes/1334.html (last visited Mar. 27, 2011).
     39. See Miller, 413 U.S. at 24.
     40. TEX. TECH UNIV., LAWS AND TEXAS TECH UNIVERSITY SYSTEM POLICIES
AFFECTING COMPUTER USE, available at http://www.depts.ttu.edu/itts/
documentation/laws/ethics2.html (last updated July 9, 2003).
     41. NE. ILL. UNIV., ACCEPTABLE USE OF INFORMATION TECHNOLOGY
RESOURCES(2009), available at http://www.neiu.edu/DOCUMENTS/NEIU
works_UIS%20-%20Docs/I1_IT/01_Acceptable_Use/Pol_I1.1.1.pdf.
     42. UNIV. OF CONN., RESPONSIBILITIES OF COMMUNITY LIFE: THE STUDENT
CODE 5 (2000), available at http://www.community.uconn.edu/docs/The_
Student_Code.pdf.
     43. See supra note 7.

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punishment when expressed online and that the First
Amendment’’s protection does not extend to e-mail expression.
This dangerous lesson miseducates students in their rights and
the importance of freedom of expression, and, as such, diminishes
the potential for academic, social, political, civic, and artistic
growth otherwise enabled by the immediacy and ease of e-mail.
    One e-mail case that illustrates the new dynamics of
censorship applicable to e-mail and highlights the unique
considerations raised by the digital medium arose at Michigan
State University in 2008.44 In August of that year, Michigan
State University Senior Associate Provost June Youatt
announced that the administration had decided to proceed with
its plan to shorten the fall semester by two days, among other
calendar changes.45 The administration’’s plan to shorten the
calendar became an issue of significant interest to the Associated
Students of Michigan State University (ASMSU), MSU’’s student
government, and the University Committee on Student Affairs
(UCSA), a committee which includes students, faculty members,
and administrators.46 Each group was concerned that the change
would make the difference in instructional time offered in the fall
(70 days) and spring (74 days) more pronounced and should not
be unilaterally enforced without significant input from relevant
faculty governance committees.47 Members of both student
government and the UCSA began discussing a potential
coordinated response of their own via e-mail.48
    One student member of both ASMSU and UCSA, Kara
Spencer, informed those ASMSU and UCSA members
participating in the e-mail discussion that she planned to send an

      44. Press Release, FIRE, Student Government Leader at Mich. State Univ.
Found Guilty of ‘‘Spamming’’ After Criticizing Administration Decision (Dec. 10,
2008), http://thefire.org/article/10020.html.
      45. Memorandum from Mich. State Univ. Comm. on Academic Policy,
Response to Provost: Fall Welcome and Academic Year Start Date 9_4_08 (Aug.
28, 2008), http://ucap.msu.edu (follow ““Supporting Docs”” hyperlink; then follow
““9/11/2008”” hyperlink) (last visited Mar. 27, 2011).
      46. Greg Lukianoff, It’’s Raining Spam at Michigan State U, HUFFINGTON
POST (Dec. 8, 2008 4:48 PM), www.huffingtonpost.com/greg-lukianoff/its-
raining-spam-at-michi_b_149378.html.
      47. See id.
      48. Id.

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informational e-mail to faculty, voicing the groups’’ concerns
about the proposed schedule change.49 She wrote:
           Also, I compiled a database of all faculty on campus and
      will be sending out an informational email this afternoon
      regarding the proposed changes and including contact info for
      faculty reps on Faculty Council should they choose to be heard
      on the issue. In line with the approach taken with the Board of
      Trustees, this email will not identify me as a part of UCSA or
      ASMSU, so I will be ““speaking”” as a concerned student/member
      of the university community. The email will not go out until
      later this afternoon, so if anyone has input or concerns, please
      feel free to contact me.50
    No concerns were aired; indeed, Spencer received an e-mail
from a faculty member on the committee, thanking her for
spreading the word.51 On September 15, Spencer e-mailed 391
faculty members whom she had carefully selected from the more
than 5,000 members of MSU’’s faculty with the text of the
statement coordinated by the ASMSU and UCSA.52 Kara’’s e-mail
read, in part:
          The Provost has proposed changes to the Academic
      Calendar and Fall Welcome schedule which are slated for final
      approval on September 23, 2008. Faculty, administrators, and
      students have voiced concerns regarding the process of the
      proposal. As concerned students we feel that adequate time has
      not been given to address the multitude of issues the proposed
      changes raise.
          In discussions with members of the university community,
      we have discovered that many are unaware of the impending


      49. Id.
      50. E-mail from Kara Spencer, Student, Mich. State Univ., to Faculty
Members,       Mich.     State    Univ.,   (Sept.  14,   2008    11:59    AM),
http://thefire.org/public/pdfs/ca7cb63de309af773641f5a8fe05baa5.pdf?direct.
     51. E-mail from Kathy Petroni, Faculty Member, Mich. State Univ., to
Kara Spencer, Student, Mich. State Univ., (Sept. 14, 2008 4:37 PM),
http://thefire.org/public/pdfs/ca7cb63de309af773641f5a8fe05baa5.pdf?direct.
     52. E-mail from Kara Spencer, Student, Mich. State Univ., to Selected
Faculty,     Mich.     State     Univ.,   (Sept.  15,   2008,   11:42     AM),
http://thefire.org/public/pdfs/f41e4f45d70a14800b4c3e30a58c319a.pdf?direct.
See also E-mail from Kara Spencer, supra note 50.

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     changes, or the likely repercussions, which will greatly affect
     both faculty and students alike.
          ....
          We believe that an inclusive dialogue among members of
     the University community and a comprehensive evaluation of
     all available information are imperative before any proposal
     can be adopted. Such a review would require that the Provost’’s
     proposal not be implemented for the 2009-2010 academic year.
         Given the immediacy of the situation, we request that any
     faculty wishing to be heard on this issue contact their . . .
     Faculty Council representative or the Provost’’s office.53
    Unfortunately for Spencer, her e-mail was not received by
one faculty recipient in the informative, civic-minded spirit in
which it was intended. Shortly after Spencer sent her e-mail,
Professor Katherine Gross complained about receiving this
e-mail to Information Technology Administrator John Gorentz,
who forwarded the complaint to MSU Network Administrator
Randall J. Hall.54 On September 16, Spencer received an e-mail
from Hall summoning her to a mandatory meeting with Hall ““for
the investigation”” of her e-mail as a possible violation of MSU’’s
Network Acceptable Use Policy.55
    At the meeting and in formal charges that followed, Hall
characterized Spencer’’s e-mail as ““spam”” and accused her of
having violated three MSU policies: GSR-3.04 (““No student shall
represent a group falsely or use the resources of a group without
proper authorization,””); GSR-4.05 (““No student shall use any
University facility, equipment, or materials except for their
authorized purposes,””) and the Network Acceptable Use Policy.56


    53. Id.
    54. Press Release, FIRE, Michigan State University Student Faces
Suspension for ‘‘Spam’’ After E-mailing Professors (Dec. 4, 2008),
http://thefire.org/article/9994.html.
     55. E-mail from Randall Hall, Network Adm’’r, Mich. State Univ., to Kara
Spencer, Student, Mich. State Univ. (Sept. 16, 2008, 4:57 PM),
http://thefire.org/public/pdfs/90e11cfb7a978d19a08bc06f290f6a2d.pdf?direct.
     56. Mich. Stat. Univ., Disciplinary (Allegations) Form against Kara
Spencer,      Sept.     17,    2008,    http://thefire.org/public/pdfs/ae43588d257
a0fc64f512e2c99de1b35.pdf?direct.

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In the meeting, Hall further suggested that Spencer had violated
additional policies, GSR 4.08 and 5.02, arguing that Spencer’’s
e-mail was the electronic equivalent of junk mail and thus
constituted a disruption of the activities of its recipients.57
     On October 31, 2008, Spencer attended a mandatory meeting
with Assistant Director of Student Life Cathy Neuman.58 Spencer
denied that she had broken any policy and requested a hearing in
front of the MSU Student-Faculty Judiciary.59 On November 19,
Spencer received an e-mail from the Judicial Affairs Office
regarding the hearing and the formal charges against her, and
notifying her that the maximum penalty for her alleged
infractions was suspension from MSU.60 Spencer was found
guilty of spamming, and a disciplinary warning was placed in her
file.61
     In response to this finding, FIRE and 12 other national civil
liberties organizations wrote an open letter to MSU President
Lou Anna K. Simon on December 17, 2008 criticizing both MSU’’s
anti-spam policy and the ruling against Spencer.62 The letter
argued:
          First, MSU’’s ““anti-spam”” policy is constitutionally suspect
      on its face. It is vague and allows the university unfettered
      discretion, requiring prior administrative approval before


      57. Id.
      58. Letter from Adam Kissel, Dir., Individual Rights Def. Program, FIRE,
to Lou Anna K. Simon, President, Mich. State Univ. (Nov. 26, 2008),
http://thefire.org/public/pdfs/844c5a42f77b3701346b817c9bc8f9fa.pdf?direct.
     59. Id.
     60. E-mail from Judicial Affairs Office, Mich. State Univ., to Kara Spencer,
Student,      Mich.     State     Univ.    (Dec.    10,    2008,     1:28   PM),
http://thefire.org/public/pdfs/230f22d0ff78f0192f716ed0aa81fa5c.pdf?direct.
     61. Id.
     62. The letter was signed by FIRE, the Electronic Frontier Foundation, the
Alliance Defense Fund Center for Academic Freedom, the Center for Democracy
and Technology, Feminists for Free Expression, the National Coalition Against
Censorship, the People For the American Way Foundation, the Woodhull
Freedom Foundation, the Electronic Frontier Foundation, the American
Booksellers Foundation for Free Expression, the Defending Dissent Foundation,
the First Amendment Project, the Online Policy Group, and Reporters Without
Borders USA. Open Letter to Michigan State University President Lou Anna K.
Simon (Dec. 17, 2008), http://thefire.org/public/pdfs/563763864da70ad7
c8048a790c4fd153.pdf?direct.

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     sending e-mails to more than approximately ““20––30”” recipients.
     It also discriminates on the basis of content, prohibiting
     e-mail sent ““for personal purposes, advertising or
     solicitations, or political statements or purposes.””
          Second, the policy’’s application in this instance is
     egregiously wrongheaded. Spencer is a student government
     leader. Her speech was in conjunction with a formal student-
     faculty committee’’s response to a significant change in the
     university calendar——a policy shift that, if enacted, would affect
     the entire MSU community. With the implicit approval of her
     committee, Spencer e-mailed a set of professors about a matter
     of campus concern. Her effort is directly analogous to writing
     fellow    citizens  exhorting    them       to   voice   opinions
     about    impending     regulatory     decisions,     or   writing
     local government officials about a funding issue.63


The letter concluded by urging MSU to overturn the guilty
finding against Spencer and to revise MSU’’s anti-spam policy,
offering assistance in doing so.64
    The coalition effort was partially successful: On January 22,
2009, MSU’’s Judicial Affairs Office notified Spencer that the
charges against her had been withdrawn, mooting her appeal.65
But while MSU also revised its policy governing e-mail use in
May of 2009, the revised policy significantly tightened the
previous policy’’s restrictions, now defining ““bulk e-mail”” as ““[t]he
transmission of an identical or substantially identical e-mail
message within a 48 hour period from an internal user to more
than 10 other internal users who have not elected to receive such
e-mail.””66 The new policy also stipulates that university e-mail
services are ““not intended as a forum for the expression of
personal opinions,”” contending that ““[o]ther means exist in the

    63. Id.
    64. Id.
    65. E-mail from Rick Shafer, Assoc. Dir., Judicial Affairs Office, Mich.
State Univ., to Kara Spencer, Student, Mich. State Univ. (Jan. 22, 2009, 1:51
PM),
http://thefire.org/public/pdfs/7f28ebaa1af0e32e4dfbe19c7b11b071.pdf?direct.
     66. MICH. STATE UNIV., APPROPRIATE USE OF MSU E-MAIL SERVICES BY
INTERNAL      USERS     ON     MSUNET,     (May    2,  2009),   available   at
http://thefire.org/public/pdfs/8a334a8e576deefe137d4dbef677abda.pdf?direct.

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University community for the expression and dissemination of
personal opinions on matters of interest within the University
community.””67 Given that MSU students, faculty, and staff
almost certainly continue to use MSU e-mail services to
communicate personal opinions, this restriction allows MSU
essentially unfettered discretion to punish those personal
opinions it chooses to subject to the harsh terms of the policy.
Not only is this result all but certain to invite selective
prosecution, it is, practically speaking, staggeringly out-of-touch
with the reality of campus communication today, where e-mail is
the medium of choice for a vast amount of human interaction
whether academic, political, or personal.

       III. ONLINE EXPRESSION: MORE VISIBILITY FOR
       STUDENT SPEECH PROMPTS MORE CENSORSHIP

     While e-mail has provided one new staging ground for free
speech battles, the advent of other avenues of online expression——
including blogs and social networking sites like Facebook——has
provided many more. These new means of online expression
provide not only the immediacy of e-mail but also a potentially
limitless audience. As a result of their reach, instances of student
speech on sites like Facebook have prompted instances of
aggressive administrative censorship.68 In monitoring student
expression on blogs and social media sites, college administrators
are spurred by a recognition that online expression may offend,
embarrass, or insult in newly visible ways. As a result,
administrators have harshly punished students for protected
online expression that might not have otherwise raised their
ire.69
     The 2006 case of Justin Park at Johns Hopkins University
(JHU) is instructive. Park, a Korean-American student who
enrolled at Johns Hopkins at the age of 15 and served as social


      67. Id.
      68. See, e.g., Rick Rojas, When Students’’ Controversial Words Go Viral,
What Is the University’’s Role?, L.A. TIMES, Mar. 27, 2011,
http://www.msnbc.msn.com/id/33179582/ns/technology_and_science-tech_and_
gadgets/.
     69. Id.

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chair of his fraternity,70 created an invitation to a themed
““Halloween in the Hood”” party his fraternity was planning and
posted it on Facebook on October 26, 2006.71 For the party——one
in a series of intentionally provocative themed parties thrown by
the fraternity, including a ““White Trash Trailer Bash”” and a
““Catholic Schoolgirl Party””——Park crafted an invitation that
listed rapper Ice-T as the party’’s host and required partygoers to
““come dressed in yo’’ bomb ass Halloween costume or git
smok’’d.””72 Soon after the invitation was posted online, however,
Park received a message from JHU’’s Director of Greek Affairs,
who called it offensive and asked him to take it down.73 Park
complied with the request, but in response to repeated inquiries
about the party, posted a new invitation on October 27.74 Park
removed what he thought to be the offensive language and
included a note stating that he did not ““condone or advocate
racism, fascism, communism, consumerism, capitalism,
terrorism, organism(s), sexism, womanism, jism, or any other ––
ism’’s.””75 The invitation still referred to Baltimore, Maryland as
an ““HIV pit,”” made mocking references to O. J. Simpson and
Johnnie Cochran, and asked attendees to wear ““copious amounts
of so-called ‘‘bling bling ice ice.’’””76 Park’’s fraternity, Sigma Chi,
hosted the party as planned on October 28.77
     On November 6, Associate Dean of Students Dorothy
Sheppard sent Park a letter informing him that because the two
Facebook       invitations    had       ““contained    offensive   racial
stereotyping,”” Park was being charged with ““failing to respect the
rights of others and refrain from behavior that impairs the
university’’s purpose or its reputation in the community;”” conduct
in violation of the ““university’’s anti-harassment policy;”” ““failure


    70. Greg Lukianoff & Will Creeley, Facing Off over Facebook: Who’’s
Looking at You, Kid?, THE BOS. PHOENIX, Mar. 2, 2007, http://thephoenix.com/
boston/news/34242-facing-off-over-facebook/.
    71. Id.
    72. Id.
    73. Id.
    74. Id.
    75. Id.
    76. Id. (internal quotation marks omitted).
    77. Id.

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to comply with the directions of a university administrator;””
““conduct or a pattern of conduct that harasses a person or group;””
and ““intimidation . . . .””78 On November 20, following a hearing,
Sheppard wrote Park to inform him that he had been found
guilty of all charges.79 As a result, Park was suspended from the
university for one year, effective immediately; required to
complete 300 hours of community service; attend a diversity
workshop; and read 12 books, writing a paper on each.80 Though
Park’’s punishment was later reduced by an undisclosed degree
following an appeal, the case illustrates the way in which the
new visibility of online expression has prompted vigorous
attempts to stifle protected student speech.81
     More recently, at Syracuse University College of Law
(SUCOL), a student, Len Audaer, was threatened with
““harassment charges”” and subjected to a three-month-long
investigation for his role in a parody blog about life in law
school.82 On October 18, 2010, Audaer was called to a meeting
with SUCOL Associate Professor of Law Gregory Germain to
discuss harassment charges being levied against him for his
alleged involvement with the blog SUCOLitis.83 The blog
consisted of ““fake news”” and sharp satire in the style of The
Onion84 and included a disclaimer stating, ““No actual news

     78. Letter from Dorothy Sheppard, Assoc. Dean of Students, Johns
Hopkins Univ., to Justin Park, Student, Johns Hopkins Univ. (Nov. 6, 2006),
http://thefire.org/public/pdfs/e7068cd0cac4351039d15b4c86e8044e.pdf?direct.
     79. Letter from Dorothy Sheppard, Assoc. Dean of Students, Johns
Hopkins Univ., to Justin Park, Student, Johns Hopkins Univ. (Nov. 20, 2006),
http://thefire.org/public/pdfs/d240ccd70d981aed4eeaec0d6135977c.pdf?direct.
     80. Id. While Johns Hopkins, as a private university, is not bound by the
First Amendment, it explicitly promised Park and his peers the right to ““a
forum for the free expression of ideas””——even those ideas, conveyed by speech
such as Park’’s invitation, that may offend or insult others. JOHNS HOPKINS
UNIV., UNDERGRADUATE STUDENT HANDBOOK 35 (2006––2007), available at
http://thefire.org/public/pdfs/d549cb55e39550d1a2f7f1a0b4d328bf.pdf?direct.
     81. Press Release, FIRE, Johns Hopkins University Resolves ‘‘Halloween in
the Hood’’ Case; Students’’ Rights Remain in Jeopardy (Jan. 8, 2007),
http://thefire.org/article/7631.html.
     82. Press Release, FIRE, Syracuse University Threatens ‘‘Harassment’’
Charges over Satirical Blog; Seeks Gag Order on Alleged Author (Dec. 14,
2010), http://thefire.org/article/12615.html.
     83. Id.
     84. History of the Onion, THE ONION, http://mediakit.theonion.com (last

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2011]                                          New Media, Old Principles

stories appear on the site.””85 Penned by multiple anonymous
authors, the blog attributed obviously fake quotes to SUCOL
students, faculty, and staff.86 Real students were named, but the
site was designed to be hidden from search engines and was later
password-protected.
      While uncertain that Audaer was one of the authors
responsible for the blog, or what he may have written, Germain
threatened Audaer with prosecution for harassment, despite the
fact that the university’’s definition of harassment should have
precluded such prosecution. Syracuse defines harassment as
““[c]onduct which threatens the mental health, physical health, or
safety of any person or persons,”” or conduct ““whether physical or
verbal, oral or written, which is beyond the bounds of protected
free speech, directed at a specific individual(s), easily construed
as ‘‘fighting words,’’ and likely to cause an immediate breach of
the peace.””87 Though the blog may have upset certain readers,
the site’’s humor was surely not ““beyond the bounds of protected
free speech,”” a determination a law school could be reasonably
expected to make.88        Nevertheless, Germain’’s investigation
continued from October 2010 until February 2011.89 Germain
only dropped the charges following a voluntary apology from
Audaer and heavy public pressure from FIRE, including naming
Syracuse one of the worst universities in the nation for free


visited March 26, 2011).
     85. Where    Do     I  Sue?,    SUCOLITIS,     http://thefir.org/public/pdfs/
deb9f397ddb01887ld68333a08f15fle.pdf?direct.
     86. Headlines included ““Senate President Elected SU’’s Sexiest Semite,””
““Popular Administrator Presumed Dead,”” and ““New Program Pairs Stressed
3Ls with Promiscuous 1Ls.”” See SUCOLITIS Blog Posts, http://thefire.org/
public/pdfs/4aed51d20fbd3edfd97b50a59c6edbb6.pdf?direct.
     87. SYRACUSE UNIV., STUDENT HANDBOOK 4 (2009) available at
http://www.syr.edu/currentstudents/publications/pdfs/SU-StudentHndbk-
low.pdf.
     88. Letter to the Editor, SUCOLITIS Investigation Questions Free
Expression     Values,     THE     DAILY     ORANGE      (Dec.      15,    2010),
http://www.dailyorange.com/opinion/letter-to-the-editor-sucolitis-investigation-
questions-free-expression-values-1.1831296.
     89. See Victory: Syracuse University Drops Allegations Against Student
Blogger, THE MORAL LIBERAL (Feb. 2, 2011), http://www.themoralliberal.com/
2011/02/02/victory-syracuse-university-drops-allegations-against-student-
blogger/.

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speech in an article for The Huffington Post.90
     Like Park, Audaer faced punishment for online expression
that would be protected in society at large and should have been
protected under his university’’s promises of freedom of
expression.91 But because both Park and Audaer engaged in
their provocative attempts at humor online——and thus in full
view of fellow students, professors, administrators, alumni, and
the general public——they were subjected to an arguably
heightened scrutiny, and their speech was deemed more worthy
of punishment by administrators who might not otherwise have
even known it had been uttered. Park and Audaer are far from
alone in this respect. Examples abound: the students at Cowley
College banned from participating in theater department
activities following their complaints about the department on a
MySpace blog;92 the student at the University of Central Florida
charged with ““personal abuse”” harassment for calling a student
government candidate a ““Jerk and a Fool”” on Facebook;93 the
University of Chicago student contacted by campus police
following a Facebook joke about a dream which involved
assassinating a professor;94 the Syracuse University students put
on disciplinary probation for starting a Facebook group critical of
a teaching assistant (““Clearly Rachel Doesn’’t Know What She’’s
Doing . . . EVER,””);95 and so on.


     90. Greg Lukianoff, The 12 Worst Colleges For Free Speech, THE
HUFFINGTON POST (Jan. 27, 2011, 8:36 AM), http://www.huffingtonpost.com/
greg-lukianoff/the-12-worst-colleges-for_b_814706.html#s230502&title=
Syracuse_UniversitySyracuse_New.
     91. SYRACUSE UNIV., STUDENT HANDBOOK, supra note 87, at 30 (““Syracuse
University is committed to the principle that freedom of discussion is essential
to the search for truth and, consequently, welcomes and encourages the
expression of dissent.””).
     92. Sara Lipka, The Digital Limits of ““In Loco Parentis,”” THE CHRONICLE
OF HIGHER EDUCATION (Mar. 7, 2008), http://chronicle.com/article/The-Digital-
Limits-of-In-Loco/25398/.
     93. Press Release, FIRE, Student Wins Facebook.com Case at University
of Central Florida, (Mar. 6, 2006), http://thefire.org/article/6867.html.
     94. Jill Laster, U. of Chicago Student Questions University’’s Reaction to
Facebook Post, THE CHRONICLE OF HIGHER EDUCATION (Mar. 25, 2010, 3:24 PM),
http://chronicle.com/blogs/wiredcampus/u-of-chicago-student-questions-
universitys-reaction-to-facebook-post/22040.
     95. Nancy Buczek, Schools Discipline Students over Internet Content, THE

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2011]                                         New Media, Old Principles

    But perhaps the most egregious instance of punishment for
protected online student speech occurred in 2007 at Valdosta
State University (VSU) in Georgia, where student T. Hayden
Barnes was ordered ““administratively withdrawn”” from campus
by then-President Ronald Zaccari as a result of a cut-and-paste
collage that Barnes posted on his Facebook page.96 Barnes first
earned Zaccari’’s attention during the 2007 spring semester when
Barnes peacefully protested Zaccari’’s plan to spend $30 million of
student funds to construct two parking facilities on campus.97
Barnes, a dedicated environmentalist, was appalled at the idea,
preferring that the money be spent on environmentally friendly
alternative means of campus transport or other initiatives, such
as providing aid to the victims of Hurricane Katrina. Barnes
began a one-man campaign to educate his fellow students about
the environmental threats he believed were presented by
Zaccari’’s construction plans by posting flyers and by contacting
Zaccari, student and faculty governing bodies, and members of
the Board of Regents of the University System of Georgia via
e-mail.98 Barnes also authored a letter to the editor of the
Valdosta State student newspaper, met with student groups he
believed might share his concerns, and again wrote Zaccari to
request an exemption from the mandatory student fee that had
been designated for funding the construction.99 Finally, Barnes
posted a series of entries and responses on his Facebook page
regarding his view of the proposed construction.100 With these
efforts, Barnes sought to detail his concerns and effectively
advocate for his position amongst his fellow students——a shining
example of civic engagement at the campus level.

POST-STANDARD, Feb. 2, 2006, at A1, available at http://thefire.org/
article/6855.html.
     96. Letter from Ronald Zaccari, President, Valdosta State Univ., to T.
Hayden Barnes, Student, Valdosta State Univ. (May 7, 2007),
http://thefire.org/public/pdfs/37d5b605294223968e960144dfdcda88.pdf?direct.
     97. The description of events that follows relies on the finding of facts by
the United States District Court, Northern District of Georgia, Atlanta Division
in its order. Barnes v. Zaccari, Case No. 1:08-CV-00077-CAP, 2010 WL 4977482
(N.D. Ga. Sept. 3, 2010).
     98. Barnes, 2010 WL 4977482, at *1.
     99. See id.
    100. Id.

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     Zaccari, however, did not appreciate Barnes’’s campaign.
After noticing Barnes’’s flyers around campus, Zaccari instructed
his staff to determine who was posting the notices.101
     On March 26, 2007, Barnes was informed by members of
VSU’’s Students Against Violating the Environment (SAVE) that
Zaccari was upset by his flyers.102 In response, Barnes took the
flyers down, deleted his Facebook entries, and wrote a letter to
Zaccari informing him that he would end his efforts and that he
did not want to have his actions viewed as an attack on Zaccari
and that he did not want to harm the viability of other
environmental initiatives on campus.103 Nevertheless, Barnes
continued to be intensely interested in the issue, contacting
members of the Board of Regents via telephone and e-mail to
respectfully state his opposition to the plan.104 Further, Barnes
created a digital collage, which contained pictures of a parking
garage, a bulldozer, the earth flattened with tire marks, an
asthma inhaler, and a picture of a bus.105 The collage featured
slogans such as ““more smog,”” ““bus system that might have been,””
““climate change statement for President Zaccari,”” and ““S.A.V.E. ––
Zaccari Memorial Parking Garage.””106         Following Barnes’’s
contact with Board of Regents members and his Facebook posts,
which were being monitored by members of Zaccari’’s staff,
Zaccari summoned Barnes to a meeting.107 During the meeting,
which lasted over an hour, Zaccari told Barnes that he had
personally embarrassed him, that he thought Barnes had ““gone
away”” following his earlier apology, and that he could not forgive
Barnes for his protests.108 Following the meeting, Barnes again
continued his campaign, sending Zaccari an e-mail with
alternative ideas for the funding and writing a letter to the editor



   101.  Id.
   102.  Id.
   103.  Id. at *2.
   104.  Id.
   105.  T. Hayden Barnes, Posting of Photo Collage, FACEBOOK (Apr. 13, 2007),
http://thefire.org/public/pdfs/b4dd6b0a21c428ec6f7bbf12b588702c.pdf?direct.
   106. Id.
   107. Barnes, 2010 WL 4977482, at *2.
   108. Id.

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of the student newspaper.109
     Increasingly irritated and under pressure from the Board of
Regents to address the protests, Zaccari initiated a series of
meetings with members of his administration and campus police
to discuss Barnes.110 At Zaccari’’s urging, investigations were
launched into Barnes’’s mental health and academic progress.111
Despite being repeatedly told by multiple staff members over the
course of several meetings that Barnes did not present any type
of threat to himself or others, Zaccari nevertheless decided to
order that Barnes be ““administratively withdrawn””——essentially
expelled——because he presented a ““danger”” to both Zaccari
personally and the VSU campus generally.112 On May 7, 2007,
Zaccari communicated his decision to Barnes by leaving a signed
copy of the administrative withdrawal underneath his dorm room
door, along with a printout of the collage Barnes had posted to
his Facebook page weeks earlier.113 Two days later, Barnes was
notified that he was required to vacate his dorm room and leave
campus within 48 hours——all on the basis of protected speech he
posted on Facebook and all without notice of the charges against
him or any opportunity to defend himself in a hearing.114
     After Barnes’’s appeal to the Board of Regents stalled, he filed
a civil rights lawsuit in January 2008 against Zaccari, members
of his administration, Valdosta State University, and the Board
of Regents alleging, among other counts, a violation of his First
Amendment and due process rights and breach of contract.115 In
reply briefs, attorneys for Zaccari and the Board of Regents
argued that Barnes’’s online speech was not protected.116

   109.  Id.
   110.  Id. at *3.
   111.  Id. at *4.
   112.  Id. at *5––7.
   113.  Id. at *7.
   114.  Id.
   115.  Complaint for Declaratory and Injunctive Relief and Damages, Barnes
v. Zaccari, No. 1:08-CV-0077-CAP, 2010 WL 4977482 (N.D. Ga. Sept. 3, 2010),
2008 WL 7298036.
    116. E.g., Defendants Valdosta State University, Board of Regents, Zaccari,
Gaskis, Keppler, Mast, and Morgan’’s Brief in Support of Their Pre-Answer
Motion to Dismiss, Barnes v. Zaccari, No. 1:08-CV-0077-CAP, 2010 WL 4977482
(N.D. Ga. Sept. 3, 2010), 2008 WL 7298037.

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     In September 2010, a federal district court found Zaccari
solely responsible for Barnes’’s expulsion, ruling that the
““undisputed facts show that Zaccari ignored the lawyers’’
warnings that withdrawing Barnes would require due process””
and     finding      Zaccari’’s  arguments    to    the   contrary
““disingenuous.””117    Because    Zaccari   disregarded    clearly
established law regarding the right of students facing
disciplinary action to receive notice of charges and a hearing, the
court found that Zaccari ““caused Barnes to be deprived of his
rights”” and was not entitled to the defense of qualified
immunity.118 The case is currently pending before the United
States Court of Appeals for the Eleventh Circuit on interlocutory
appeal by Zaccari and the Board of Regents.
     Barnes’’s treatment illustrates the way in which social media
can serve as a magnet for censorship of protected speech.
Because Barnes’’s Facebook posts were both visible and subject to
official monitoring in ways that traditional modes of
interpersonal communication might not be, Zaccari was able to
seize upon Barnes’’s online speech as a justification for
punishment, arguing that Barnes’’s Facebook collage was
evidence of a threat.119 Had Barnes’’s collage been posted on his
dorm room wall instead, Zaccari would not have been afforded
this opportunity. In the same way, had the barbed commentary
on SUCOLitis been confined to jokes between friends, it is
equally unlikely Len Audaer would have found himself the
subject of an investigation into harassment. But because blogs
and social media sites have made student speech newly
accessible and subject to monitoring, the urge to censor allegedly
““harmful,”” but protected, speech becomes stronger.




   117. Barnes, 2010 WL 4977482, at *16.
   118. Id. at *20. For more detailed analysis of the doctrine of qualified
immunity and student rights, see Azhar Majeed, Putting Their Money Where
Their Mouth Is: The Case for Denying Qualified Immunity to University
Administrators for Violating Students’’ Speech Rights, 8 CARDOZO PUB. L. POL’’Y
& ETHICS J. 515 (2010).
   119. Barnes, 2010 WL 4977482, at *4.

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2011]                                    New Media, Old Principles

                               IV. CONCLUSION

    E-mail, social networking sites, blogs, and other forms of
online communication have dramatically changed the means by
which students talk to each other. But while the modes of
communication may have changed in the past 50 years, the
content of the speech remains much the same. Just like their
analog predecessors, today’’s students express themselves in
passionate, irreverent, and occasionally challenging ways. Some
of this speech will provoke debate; some will offend others——and
indeed, is perhaps intended to do so. In the case of blogs or social
networking sites, the new visibility afforded by these mediums
may make the impact of this speech seem more intense; in the
case of e-mail, the speed of communication may make the speech
seem more insistent. However, it is crucial that administrators
remember that no matter the means of the expression, the core
principles guiding our understanding of what speech is and is not
protected remain unchanged. The First Amendment has
weathered technological revolutions before, and it will do so
again. For the most part, the legal tests we employ to ascertain
whether speech enjoys First Amendment protection do not rely
on the medium in which the expression occurs. The exacting
definition of peer-on-peer harassment remains the same, whether
the speech takes place online or on the campus green; the legal
test for incitement still requires the satisfaction of the same
elements, whether the expression at issue is visible on a screen
or heard on the way to class. While the media may be new, the
speech——and how we evaluate it——is not.
    Further, the new visibility of speech offers opportunities for
increased understanding and tolerance of differing viewpoints
and different ways of speaking to one another. This is a
significant development. In the first years following FIRE’’s
founding in 1999, it was possible to believe that campus
administrators consistently overreacted to student speech
because they were simply not familiar with the way students
actually talk to each other in private: using slang, vulgarity,
insults intended to be affectionate, multiple levels of sarcasm and
irony, and jokes sometimes intended to mean the exact opposite
of what a plain reading might indicate. Now, with an ocean of

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student speech published on Facebook and Twitter,
administrators are hard-pressed to avoid a greater level of
familiarity with the actual nature of student speech.
Administrators need to realize that jokes are jokes, and unfunny,
would-be collegiate comedians do not enjoy any less First
Amendment protection than the rest of us. It can reasonably be
hoped that electronic media and the sheer volume and diversity
of the communications to which it provides access and insight
will eventually encourage college administrators to drop
attempts to police student speech——if not due to a newfound
respect for free speech, then out of a recognition of the utter
futility of the enterprise.
     As once private speech becomes increasingly public online,
we must allow our social expectations to evolve to accommodate
viewpoints and ways of speaking that, while not our own, are
nevertheless protected by the First Amendment. By doing so, we
can begin to resolve the current tension regarding online speech
on campus.




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